PHILADELPHIA

April 2007

Vol. 36, No. 4

The Monthly Newspaper of the Philadelphia Bar Association

Book Review

Evidence a Must for Litigators

2007 Edition of Pennsylvania Rules of
Evidence
by Judge Mark I. Bernstein
1,047 pages, $100 (includes free online
updates), Gann Law Books
Reviewed by Michael H. Gaier
Leafing through the 2007 Edition of
Pennsylvania Rules of Evidence, with Comments
and Annotations by Philadelphia Court of
Common Pleas Judge Mark I. Bernstein,
it is clear that Judge Bernstein is passionate about trial advocacy and knows
evidence. Even though the text is 1,047
pages, the book is easy to use, reads well
and looks authoritative on counsels
table. This book is a must-have for any
litigators library.
Whether the judge prepared the book
for judges or for lawyers is hard to say.
Counsel will find answers quick-ly, and
with plenty of authority to cite, no matter
on which side of the aisle they stand. The
thousands of opinions cited are done in
an accessible, easy-to-read summary-ofthe-case fashion, giving lawyers a onestop source for any issue that might arise
before or during trial and the trial court
judge the support for proper rulings.
Its real value, however, comes from
the fact that nearly every Common Pleas
Court judge in the commonwealth uses
the book. It is not uncommon to be
called to a sidebar conference as the trial
judge starts leafing through a dog-earned

copy of Judge Bernsteins book, the same

one youve got in your hands, with notes
and highlighted sections throughout. A
valid nervousness counsel may have is
when the judges edition is more recent
than your own, a concern I just had in
December in Northampton County, made
more real by the fact that the 2007 edition has cases through October 2006.
Judge Bernstein is well known as an
evidence expert, particularly on expert
testimony. He has taught judges medical
malpractice evidence, the law of Frye/
Daubert and other issues of scientific evidence. This expertise is evident throughout the work. For instance, if the issue is
whether expert testimony is required in
a particular case, Section 702[4][a] provides eight alphabetized areas where
such testimony is required, (i.e. emotional
distress, future medical treatment), while
702[4][b] gives you just as many areas
where expert testimony is not required
(i.e., whether a bodys organ is vital, or
water running on a roadway can cause
a fatal accident). If those sections havent
answered the question, 702[4][c] lays out
even more areas where expert testimony,
is not required, but is permissible (i.e., a
psychiatrist can opine about a battered
womans belief that she was acting in
self-defense).
Fortunately, the books usefulness
is not limited to the courtroom; every
purchaser is entitled to use the unique
online update service that allows specific
key word searches and is continually up-

dated with new cases by topic. The 2007

edition reviews nearly every case applicable to a particular rule and compares
each rules federal counterpart. Likewise,
the policy sections give the practitioner
the needed arguments when an issue
has never been specifically addressed in
precedent.
Judge Bernstein noticeably favors
the Pennsylvania rules over the federal
rules. For instance, Judge Bernstein prefers Pennsylvania practice requiring the
expert witness to state the factual basis
of the opinion during direct examination
over the federal rule where the basis is
usually disclosed during cross-examination. This is where Judge Bernsteins
passion for the trial process search for
the truth becomes evident. He wants the
Rules of Evidence to allow the jury to
determine which parties facts are more
convincing, rather than which expert is
the better hired gun. Similarly, he disfavors the federal rule that allows an
authoritative text to be read during direct
examination. He believes this puts the
books author on trial, not the testifying
expert reading it in. Since the Pennsylvania rules generally only allows the
text to be read during cross examination,
one can tell Judge Bernstein wants the
lawyers to give the evidence to the jury.
Using this book is a fine way to get that
done.
Michael H. Gaier is a partner with Shaffer & Gaier, LLC.